# The Attorney General of Texas July 10, 1978
JOHN L. HILL AttorneyGeneral

Honorable Lynnlngalsbe

Criminal District Attorney Taylor County Courthouse 701 Commerce. suite 200 Abilene, Texas 79602 DalIa% TX. 75202 214,742~8944
4824 Alberta Ave., suite 160 El Paso, TX. 799% Dear Mr.Ingalsbe: 9151533-3484 Opinion No.H-1207 Re: Whether canvassing board may order recount ofballots inlocal option election.

At the instance of the Commissioners Court ofTaylor County sitting as a canvassing board, you request our opinion concerning whether the canvassing board has authority to order arecount of the ballots in a recent local option election inwhich paper ballots were used. The Commissioners Court met as a canvassing board under section 251.51of the Alcoholic Beverage Code. A group of citizens requested a recount of ballots at that time. Your office advised the board that neither the Election Code nor the Alcoholic Beverage Code authorized the board to order a recount. In your brief of the law submitted with your request as required under article 4399, V.T.C.S., you conclude that there is no legal authority for the commissioners court sitting as acanvassing board ofsuch an election to recount the ballots. Upon receipt ofyour request wereferred the question to the Secretary ofState. Article 1.03ofthe Election Code designates him the chief election officer of the State, and gives him the responsibility of insuring the uniform interpretation and application of the election laws. See Attorney General Opinion H-407 (1974)(establishing policy ofreferral of-6&tion law questions ,^_ - Affirmative Action Emplop= to Secretary ofState).Honorable Lynn Ingalsbe, - page 2 (H-1207)

The Secretary of State has advised usby his letter of June 30, 1978,that in his opinion there is no legal authority for the commissioners court sitting as a canvassing board ofsuch anelection to recount the ballots. As you and the Secretary of State conclude, the law is clear that the canvassing board has nopower to order a recount. The board’s only authority in this election is to ascertain that the papers submitted aselection returns are in the correct form and properly authenticated bythe proper officers, and to compile the votes shown on the face of the returns and declare and certify the result ascertained. In Perguson v. Huggins, 52 S.W. 904 (Tex. 1932),the Texas Supreme Court discussed the limited powers and duties ofa canvassing board and quoted authority for certain “elementary rules oflaw” asfollows, at pp. 905-906:

It is settled beyond controversy that canvamers cannot go behind the returns. The returns provided for bylaw are the sole and exclusive evidence from which a canvassing board or official can ascertain and declare the result.

...’ The authorities likewise hold that, in the absence of a statute conferring it, a board of canvassers has neither express nor implied power to recount the ballots.

... The supreme court reiterated these elementary rules of law in Grant v. Ammerman, 437S.W.2d 547 (Tex. 1969). The court held that canvassing the votes of an election is a ministerial function and that in the case before them, the commissioners court sitting as a canvassing board “did not have the power to go behind the election returns.” The court said it has been held that a canvassing board “may not supplant statutory procedures for the contest ofan election.” Id.at 549-550. - There is no statute in either the Election Code or the Alcoholic Beverage Code which authorizes the commissioners court to conduct a recount In a local option election conducted with paper ballots. Adistrict judge may order arecount upon petition of 25voters when an electronic voting system is used. Blec. Code art. 7.15. A“recheck and comparison of the results” in the presence of a district judge and the county judge may berequested when voting machines are used. Elec. Code art. 7.14,SS19,19a. Arecount at the request and expense ofa candidate is authorized when paper ballots are used in an election for a public office. Elec. Code art. 9.38a. Each of these statutes sets out elaborate procedures specifying whomay request arecount or the number ofvoters required to request it, to whom and when the request must be made, the grounds for arequest, and how the costs involved are to be paid. The procedures differ substantially among the several

P. 4844Honorable Lynn Ingalsbe - page 3 (H-1207)

provisions. None isapplicable to the type ofelection before us. While the law may beinconsistent orincomplete inthis regard, such arguments are properly addressed to the legislature. They have nobearing onwhat the law isat this time. Weconcur with the legal conclusion reached by you and bythe Secretary of State. In our opinion it is clear that there is no statutory authority for the commissioners court sitting as a canvassing board under section 251.51of the Alcoholic Beverage Code to order a recount of the ballots in this local option election. Anelection such asthis may becontested in the manner set out inarticle 251.55 of the Alcoholic Beverage Code after the results are declared by the canvassing board. 1972,nowrit). Ellis v. Vanderslice, 486 S.W.2d 155(Tex. Civ. App. - Dallas

See also Rlec. Code, ch. 9.

SUMMARY The commissioners court, sitting as canvassing board under section 251.51of the Alcoholi,c Beverage Code, has no legal authority to order a recount of paper ballots in a local option election. Verytruly yours,

Attorney General ofTexas

APPROVED: 

# L

Opinion Committee ’

P. 4845